WHAT IS A “REFUSAL” AND WHAT EFFECT DOES IT HAVE ON YOUR DUI CASE?
What constitutes a “refusal” in a Georgia DUI case is a source of great confusion amongst some lawyers and most people facing an allegation that they refused the “state-administered” test. While what constitutes a refusal in a DUI case is a question of very practical significance, particularly with regard to the administrative license suspension, many lawyers are very confused about the effects a refusal can have upon a DUI case. Here, DUI lawyer Ben Sessions will discuss what does (and, perhaps more importantly, does not) constitute a refusal in a Georgia DUI case and what a refusal means when defending a DUI case.
Here, we are concerned only with the state-administered blood, breath, or urine test. The state-administered test is the test (or tests) that a DUI suspect is asked to submit to after being placed under arrest for DUI, or in the event of a death or serious injury, a test that is requested after the officer has reasonable grounds to believe that a person is DUI. I am not addressing the admissibility or effect of refusal of the preliminary (roadside) preliminary breath test or field sobriety tests.
OCGA 40-6-392(d) states:
In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.
The natural question that one might ask is how a person's refusal to submit to a state-administered test would be admissible in light of the right to be free from self-incrimination. This answer is simple: when it comes to the prosecution of alleged DUI defendants, our courts bend to the point of breaking the Constitutional principles that seem so clear:
In Georgia, the [S]tate may constitutionally take a blood sample from a defendant without his consent. [Cit.] Our ‘Implied Consent Statute' ([cit.]) thus grants a suspect an opportunity, not afforded him by our constitution, to refuse to take a blood-alcohol test. [The statute] grant[s], rather than den[ies], a right to a defendant. We agree with the United States Supreme Court's view that neither choice afforded a defendant is ‘so painful, dangerous, or severe, or so violative of religious beliefs' that no choice actually exists. [Cit.] We thus find no compulsion on behalf of the [S]tate and no violation of due process or OCGA § 24-9-20. [Cit.]” Allen v. State, 254 Ga. 433, 434(1)(a), 330 S.E.2d 588 (1985).
“The legislature grants the right and determines its nature.” Allen v. State, supra at 434(1)(b), 330 S.E.2d 588. Although the legislature has granted a driver the right to refuse to take a State-administered test, it has nevertheless mandated that evidence of the exercise of that right shall be admissible in the driver's criminal trial. OCGA § 40-6-392(d). “A defendant's refusal to take a blood test is certainly relevant and probative in a case such as this one. [Cit.]” Allen v. State, supra at 434(1)(c), 330 S.E.2d 588. It follows that the trial court correctly denied appellant's motion to suppress.
At least for now, we are fortunate that we retain the right to try our DUI cases to juries. (This is not a right we should take lightly as many states have taken away the right to jury trial in misdemeanor DUI cases.) A skilled lawyer can effectively deal with a refusal of the state-administered test, and while our courts may not take seriously the clear incriminatory nature of this post-arrest interrogation (also known as a Miranda violation), most good lawyers that actually take these cases to trial recognize that jurors frequently do take this principle seriously and they often value our client's right not to produce evidence that might be incriminatory. In so doing, jurors are oftentimes quite taken aback by the State's insistence that the Defendant, as opposed to the government, should have proven the case.
OCGA 40-6-392(a)(1)(B) provides the statutory basis for determining when a DUI suspect has “refused” a state-administered breath test:
No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver's license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.
“The Implied Consent Law requires a meaningful submission to the test as otherwise the purpose of the law would be frustrated.” (Emphasis supplied.) Pfeffer v. Dept. of Public Safety, 136 Ga.App. 448, 450, 221 S.E.2d 658 (1975). As I have discussed previously, use of the Intoxilyzer to determine when a DUI suspect has failed to provide a meaningful submission is highly suspect, and any lawyer addressing this allegation should consider all means available, including a Harperchallenge, to attack the admissibility of this evidence.
Under Georgia law, silence after a request for the submission to a state-administered test is deemed a refusal. Miles v. State, 236 Ga. App. 632, 513 S.E.2d 39 (1999).
In Georgia, the refusal to submit to a requested state-administered test is not a criminal offense, and a refusal is only a portion of the evidence that may or may not support the State's DUI less safe charge. The real concern that we have in any case involving an alleged refusal of the state-administered test is the administrative license suspension, which is governed by OCGA 40-5-67.1(d):
If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given; but the law enforcement officer shall report the refusal to the department. Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident which resulted in serious injuries or fatalities and that the person had refused to submit to the test upon the request of the law enforcement officer, the department shall suspend the person's driver's license, permit, or nonresident operating privilege for a period of one year or if the person was operating or in actual physical control of a commercial motor vehicle, the department shall disqualify the person from operating a commercial motor vehicle and shall suspend the person's driver's license, permit, or nonresident operating privilege, subject to review as provided for in this chapter.
The administrative license suspension poses a challenge for both the lawyer and the client. The government's burden at the administrative license suspension is much lower than that it faces in the criminal DUI case, and the consequences of a refusal suspension (a possible suspension of 1 year) are great. OCGA 40-5-67.1(g)(2) defines the scope of the administrative license suspension hearing in refusal cases:
The scope of the hearing shall be limited to the following issues:
(A)(i) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or
(ii) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
(B) Whether at the time of the request for the test or tests the officer informed the person of the person's implied consent rights and the consequence of submitting or refusing to submit to such test; and
(C)(i) Whether the person refused the test;
The key to avoiding or limiting a refusal suspension is obtaining a non-DUI disposition, as provided in OCGA 40-5-67:
If the person is not convicted of violating and does not enter a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the court is in possession of the driver's license, the court shall return the driver's license to the person unless the license is in suspension for any other offense, in which case the court shall forward the license to the department for disposition.
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